MILITARY COMMISSIONS TRIAL JUDICIARY
GUANTANAMO BAY, CUBA
UNITED STATES OF AMERICA

AE 639M

v.
KHALID SHAIKH MOHAMMAD,
WALID MUHAMMAD SALIH
MUBARAK BIN ‘ATTASH,
RAMZI BIN AL SHIBH,
ALI ABDUL AZIZ ALI,
MUSTAFA AHMED ADAM
AL HAWSAWI

Trial Scheduling Order

30 August 2019

1. On 26 July 2019, the Commission heard oral argument on AE 639, to include a discussion of
pending trial and discovery issues and the various impediments/concerns the parties believe must
be addressed in any trial scheduling order issued by the Commission. 1 Having considered the
motions submitted by the parties and the arguments of counsel, the Commission establishes the
attached Trial Schedule for the case of United States v. Khalid Shaikh Mohammad, et al.
2. Trial Schedule (Attachment A). To ensure a fair and expeditious processing of this case the
Commission sets 11 January 2021 for the start of the trial on the merits, and establishes the
following Trial Scheduling Order setting forth pretrial tasks and deadlines in accordance with
(IAW) Rules for Military Commissions (R.M.C.) 108, 801(a)(3), 801(b), and 801(g) and Military
Commissions Rules of Court Rule 1.5 and Rule 3.7.c.(1). 2
3. Briefing Schedule (Attachment B). The trial of this capital case at U.S. Naval Station,
Guantanamo Bay (NSGB), Cuba will face a host of administrative and logistics challenges
requiring coordination between the parties, the Convening Authority, classified information
equity holders, and installation management officials. To ensure early and frequent coordination
of these issues, the Commission also establishes a briefing schedule for the Government to
provide periodic status updates on these issues.
4. Motions. Within 7 calendar days of filing a motion, the parties shall provide opposing
counsel and the Commission a list of all witnesses a party intends to call in support of a motion.
Counsel will file proposed findings of fact and conclusions of law with all motions filed with the
Commission. Proposed findings of fact should reference either a witness or a document (or both)
the party intends to offer during motions practice to support the facts alleged in the motion.
1

During that discussion, the Defense asserted that the Government was either unable or unwilling to produce, in a
timely manner, the discovery of which the Defense believes it is entitled. In response to questioning by the
Commission, the Government indicated it was “ready to commit” “that 1 October [2019] is the date by which [the
Government] will have made sure [the Government is] in compliance completely with [Rule for Military
Commissions (R.M.C.)] 701 and the various orders of [the Commission].” The Government further accepted the fact
that a failure by the Government to “live up to” that commitment regarding the production of discovery would lead
to adverse “consequences” for the Government. See Unofficial/Unauthenticated Transcript of the U.S. v. Khalid
Shaikh Mohammad Motions Hearing, dated 26 July 2019 from 4:46 P.M. to 5:14 P.M. at pp. 24707-24708.
2
The Commission has considered the needs of the Government, the Defense, the Accused, alleged victims, as well
as the public –to include the media and the international community in establishing this scheduling order.

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Appellate Exhibit 639M
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 Parties may also stipulate to certain facts for the limited purpose of the motion. Responses and
replies to motions will be submitted IAW existing rules of court unless an expedited briefing
cycle is ordered by the Commission. Trial Counsel shall provide to the Defense all matters ruled
discoverable by the Commission pursuant to motions to compel discovery within 60 days of
each ruling.
5. Convening Authority (CA) Action on Motions for Experts. The CA shall act on all expert
consultant requests from the parties within 30 days from receipt of the motion. The CA shall
either fund all expert assistance ordered by the Commission upon the filing of a motion by the
party or provide notice via the moving party of its intent to not comply with the order within 30
days of the Commission’s order.
6. Joint Status Updates. Commencing in October 2019, during the initial R.M.C. 802
conference preceding the first day of Commission hearings, the Commission will conduct a
status conference with the Government and at least one representative from each Defense Team.
The conference will be recorded by a court reporter.
7. Trial Plan. Counsel are required to file a trial plan for all litigated cases. Such plans can be
useful in helping get ready for and executing the trial. In developing the plan, the Government
should initially set it up and forward it on to the Defense for input. Defense will then add its
inputs and send it back to the Government within 30 days of receipt. The Government will
forward it on to the Commission NLT 75 days prior to the scheduled trial start date.
So ORDERED this 30th day of August, 2019.
Attachments
A. Trial Schedule
B. Briefing Schedule
//s//

W. SHANE COHEN, Colonel, USAF
Military Judge
Military Commissions Trial Judiciary

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Appellate Exhibit 639M
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 ATTACHMENT A

Appellate Exhibit 639M
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TRIAL SCHEDULING ORDER

Specific Task

Deadline

The Government shall file all known
requests for protective orders,
summaries and substitutions IAW
M.C.R.E. 505 with the Commission.
The Government shall provide the
Commission notice of the CA’s ability
to supply interpreters and interim
security clearances to Defense Teams.
The Government shall provide the
Defense access to a Magnetic
Resonance Imaging machine at
(NSGB) along with a reasonable
protocol for requesting MRI scans.
The Government shall provide the
Defense a formal notice of all
statements by the Accused IAW
M.C.R.E. 304(c), all hearsay statements
it intends to introduce against the
Accused IAW M.C.R.E. 803(b) and all
M.C.R.E. 404(b) evidence the
Government intends to use. The
M.C.R.E. 304(c) notice shall include
any Government proposed Bruton
redactions.

1 October 2019

The Government has notified all
Accused of any records of prior
criminal convictions of the Accused
that the Government may offer on the
merits, in rebuttal, including
impeachment, or in sentencing and has
permitted the Defense to examine such
records in the Government’s
possession.
The Government has produced to all
Accused all results or reports of
physical or mental examination, and of
scientific tests or experiments, or copies
thereof, which are within the
possession, custody, or control of the
Government, the existence of which is
known or by the exercise of due
diligence may become known to the
Government, and which are material to

1 October 2019

Date Notification
Received by
Commission

1 October 2019

1 October 2019

1 October 2019

1 October 2019 or
within 60 days of
completion (if done
after 1 October 2019)

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 the preparation of the defense or are
intended for use by the Government as
evidence in the prosecution case-inchief at trial, in rebuttal, or during
sentencing.
The Government has produced to all
Accused the names, military email
addresses, and military telephone
numbers for all known persons
identified by unique medical-record
identifier pseudonym in the Accused’s
medical records provided in discovery,
which the Government has been able to
ascertain via due diligence.
With the exception of tangible objects
being physically relocated to Naval
Station Guantanamo Bay, the
Government will allow Defense
Counsel the full opportunity to inspect
all items required IAW R.M.C. 701.
The Defense shall file all “Law
Motions” (i.e., not involving the
presentation of evidence) to include
motions based on defects in the
swearing, forwarding, investigation or
referral of charges, challenges to the
Military Commission system as a
matter of law, speedy trial, and
challenges to the capital sentencing
scheme.
The Government shall affirmatively
state that it has completed all of its
discovery obligations under R.M.C.
701 and its subparagraphs, to include
the provision of all discovery matters
already ordered disclosed by the
Commission to the Defense and all
M.C.R.E. 505 protective orders,
summaries and substitutions to the
Defense.
The Government shall provide a copy
of its proposed evidence list and
witness lists for findings and
presentencing to the Defense and the
Commission. This list shall include any
proposed experts, their Curriculum
Vitae, and any reports they have
generated or would be relying upon in
their testimony.

1 October 2019

1 October 2019

1 November 2019

1 November 2019

1 December 2019

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 The Defense provide notice of all
hearsay statements they intend to offer
pursuant to M.C.R.E. 803(b)(2).
The Defense shall file all additional
evidentiary motions, to include (1)
motions in limine, (2) initial motions to
suppress Letter Head Memorandum
(LHM) statements on grounds other
than voluntariness, (3) motions for
appropriate relief, (4) motions to
suppress any additional statements
noticed by the Government IAW
M.C.R.E. 304(c) and M.C.R.E. 803(b),
(5) motions to suppress other evidence,
and (6) motions to exclude M.C.R.E.
404(b) evidence noticed by the
Government.
The Defense shall file all motions to
compel discovery and/or depositions
with the Commission.

1 February 2020

1 February 2020

1 February 2020 or 90
days following the
Government’s assertion
that all R.M.C. 701 and
M.C.R.E. 505 matters,
including Commission
directed disclosures,
have been provided to
the defense – whichever
is later. (all responses to
motions will be filed
IAW existing rules of
court).
NLT 75 days following
the final witness being
called to testify on the
matter.

The Defense shall file the final briefs
for the motions to suppress related to
the voluntariness and motions to
suppress on grounds other than
voluntariness of the accused’s LHM
statements to the FBI and for motions
regarding Government restrictions on
Defense investigation per AE 524LLL.
The Government shall relocate all
1 February 2020
tangible items it intends to move to
(NSGB) for Defense Counsel
inspection and maximize Defense
Counsel’s ability to review the
evidence without unnecessary
Government interference or restrictions.
The Convening Authority shall
1 April 2020
provide an amended convening order to
the Commission with a sufficient
number of members to accomplish
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 capital (death penalty) qualification
requirements and ultimately sit a panel
(data sheets for each member shall be
provided to the Defense and the
Commission upon selection).
The Defense shall provide reciprocal
discovery, proposed witness and
evidence lists for findings and
presentencing, as well as notice of any
affirmative defenses to include alibi or
lack of mental responsibility or intent to
introduce expert testimony as to the
Accused’s mental condition pursuant to
RMC 701(g)(2). This list shall include
any proposed experts, their Curriculum
Vitae, and any reports they have
generated or would be relying upon in
their testimony.
The Parties shall confer and provide
the Commission with a proposed
questionnaire of agreed upon questions
to be provided to potential panel
members and any additional questions
to which the parties disagree.
The Parties will provide all required
disclosures per R.M.C. 914.
The Parties shall provide any proposed
findings and sentencing instructions to
the Commission.
The Government has produced to all
Accused all classified information it
intends to introduce in its case in chief
or as evidence marked for display to the
Accused.
The Defense shall give M.C.R.E.
505(g)(1)(A) notice of all classified
information the Defense intends to
elicit or disclose during the merits
phase of the trial and during
presentencing proceedings.
The Government shall provide notice
of objections to Defense use of
classified information and Government
proposed alternatives to Defense use of
classified information.
The Parties shall raise any final
evidentiary issues arising from pre-trial
Commission rulings.

1 April 2020

1 May 2020

1 June 2020
1 June 2020

1 July 2020

1 August 2020

1 September 2020

1 October 2020

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 The Parties shall provide proposed voir
dire questions to the Commission.
Final witness and evidence lists for All
Parties are due to the Commission
along with a proposed trial plan for the
presentation of evidence.
The Commission holds a final
scheduling conference with the parties.
The Commission accepts the entry of
pleas by each Accused and commences
with voir dire of the members.

1 October 2020
1 November 2020

7 December 2020
11 January 2021

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 ATTACHMENT 

Appellate Exhibit 639M
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BRIEFING SCHEDULE
The Government shall work with the CA to provide logistics brief to the Commission and the
Defense addressing the following matters and setting forth how the Government intends to ensure the
trial is ready to proceed on the scheduled trial date. The briefings will be in writing with an oral
presentation during the next scheduled Commission hearings.

1. Adequate Office Space for the parties
and the judiciary.

Initial briefing NLT 1
November 2019

2. Lodging for the parties, the judiciary,
the members, the public and the
media/press.

Second briefing NLT 1
February 2020

3. The PA plan and facilities to be made
available to accommodate the media/press
and their interests in the trial.
4. Security clearances for experts,
consultants, members of trial and defense
teams and all members detailed to the
Commissions by the CA.
5. Transportation plan for witnesses,
members, parties, judiciary, etc. during the
motion practice, voir dire and the trial
itself.
6. The provision of food for everyone
associated with the trial in any capacity for
the 9 months or so that the trial process
could last.

Third briefing NLT 1 May
2020
Fourth briefing NLT 1
August 2020
Fifth briefing NLT 1
September 2020
Sixth briefing NLT 1
October 2020
Seventh briefing and items
complete NLT 1
November 2020
Final briefing NLT 1
December 2020

7. The plan for accommodating medical
emergencies that cannot be handled on the
island.
8. The plan for redeploying participants
during Commission approved breaks in
hearing.
9. The plan for sequestering the members
for weeks at a time.
10. The plan for ensuring that military
members do not lose their BAH and other
entitlements during extended TDYs.
11. The CA’s plan for per diem during the
extended sessions of the Commission.
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